The Chronic Failure to Control Prisoner Isolation in US and Canadian Law

Abstract

The decision to place a prisoner in isolation can profoundly intensify the severity of a legal sanction of imprisonment. While the Canadian legislative regime offers some protections, prison officials are empowered with broad discretion to make this decision with no judicial input. Strikingly, prisoners can be placed in isolation for indefinite periods of time, which has invited critical scrutiny. Litigation under the Canadian Charter of Rights and Freedoms could challenge the current Canadian scheme, but the US experience of litigating solitary confinement warns of the limits of some forms of judicial intervention as a means to generate effective controls over this practice. In response to extreme forms of solitary confinement, American courts have only articulated minimal constraints and narrow individual exemptions — no court has found the basic practice of indefinite isolation to be constitutionally barred, and it is currently used on a widespread basis. The American example sheds light on the possibilities of litigation as a method of penal reform and reveals a judicial tendency to police only peripheral issues without addressing fundamental flaws in prevailing penal practices. Canadian prison legislation already includes many of the same protections that have been extracted from US courts, but essential protections remain absent in both countries. Law reform efforts should aim for a judicial declaration that prohibits isolation for indefinite and excessive terms, and mandates external oversight over all forms of isolation.

Keywords: Prisoner litigation, solitary confinement, comparative law